May 9, 2017
Thomas Hungar
General Counsel
House of Representatives
Office of General Counsel
219 Cannon House Office Building
Washington, D.C. 20515-6532
Dear Mr. Hungar:
Recent reports indicate that the House Committee on Financial Services and the House
Ways and Means Committee have instructed agencies to exclude from public records laws all
correspondence with the committees, as well as any material prepared in response to committee
requests—all apparently on advice from your office.1 American Oversight respectfully requests
that the House Office of General Counsel immediately publicly release the purported legal
justification for these expansive directives.
According to press reports, your office subscribes to the view that congressional records
are exempt from FOIA and that any communications from Congress are congressional records
“whenever Congress expresses the intention that such communications are to retain their status
as congressional records.”2 This sweeping and circular position appears to be a radical
extrapolation from specific language in case law.3 Contrary to your assertion, however, no case
holds that all, or even most, of congressional correspondence with executive branch agencies is
exempt from disclosure. In each case in which courts have protected from disclosure
“congressional records” in the possession of executive branch agencies, the courts have
1
Mary Ann Georgantopoulos, These Federal Agencies Agreed To Conceal Some Of Their
Communications From The Public, BUZZFEED NEWS, May 7, 2017,
https://www.buzzfeed.com/maryanngeorgantopoulos/federal-agencies-concealcommunications?utm term=.mrZB0rV0J#.mjjd8Ej8R; Mary Ann Georgantopoulos, Now
Another House Committee Doesn't Want You To Read Its Emails With Government Officials,
BUZZFEED NEWS, May 5, 2017, https://www.buzzfeed.com/maryanngeorgantopoulos/housecommittee-foia-part-2?utm_term=.jama5pR57#.pnWj7YN7Q; Mary Ann Georgantopoulos, A
House Committee Doesn't Want You To See Its Correspondence With Government Officials,
BUZZFEED NEWS, May 4, 2017 https://www.buzzfeed.com/maryanngeorgantopoulos/housecommittee-wants-records-with-treasury-secret?utm term=.coQ7LWaLX#.yqJ3ZbVZk.
2
Mary Ann Georgantopoulos, These Federal Agencies Agreed To Conceal Some Of Their
Communications From The Public, BUZZFEED NEWS, May 7, 2017.
3
See United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004).
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examined the specific content of the documents in question and found case-specific reasons why
disclosing the documents would impair Congress’s constitutional role.4
The directives issued by the House Committee on Financial Services and the House
Ways and Means Committee would take this narrow, case-by-case approach and replace it with a
presumption of secrecy for an entire category of information. Indeed, the House Ways and
Means Committee reportedly is including such language in a stock footer in staff emails
regardless of their subject matter.5 Such an approach directly contradicts Congress’s initiative to
impose a presumption of disclosure through the FOIA Improvement Act of 2016.
Unfortunately, several executive agencies reportedly intend to comply with the
committees’ overbroad directives.6 As a result, FOIA requesters may never learn that agencies
are withholding responsive documents based on a rationale outside of the FOIA statute itself.
The public will suffer from this extra-statutory policy. At minimum, the public should have
access to the analysis behind it.
We look forward to your prompt response.
Sincerely,
Austin R. Evers
Executive Director
American Oversight
4
See, e.g., United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597–602 (D.C. Cir. 2004); Golund v.
CIA, 607 F.2d 339, 348 (D.C. Cir. 1978); Am. Civil Liberties Union v. CIA, 105 F. Supp. 3d 25
(D.D.C. 2015).
5
Mary Ann Georgantopoulos, Now Another House Committee Doesn't Want You To Read Its
Emails With Government Officials, BUZZFEED NEWS, May 5, 2017.
6
Mary Ann Georgantopoulos, These Federal Agencies Agreed To Conceal Some Of Their
Communications From The Public, BUZZFEED NEWS, May 7, 2017.
2